Exhibit 10.44

 

SUBLEASE

 

THISSUBLEASE (this “Sublease”), dated as of the 17th day of September, 2003,between PHARMACIA & UPJOHN COMPANY, a Delaware corporation, having anoffice c/o Pharmacia Corporation, 100 Route 206 North, Peapack, New Jersey07977 (herein called “Sublessor”), and DENDRITE INTERNATIONAL, a NewJersey corporation, having an office at 1200 Mt. Kemble Avenue, Morristown, NewJersey 07960 (herein called “Subtenant”).

 

WITNESSETH

 

WHEREAS,Pharmacia Corporation, a Delaware corporation (“Pharmacia”), as tenant,and Somerset Financial Center, L.L.C., as landlord (“Somerset”), enteredinto that certain Agreement of Lease dated as of May 4, 2000 (the “Lease”),as such lease is amended by that certain First Amendment to Agreement of Leasedated as of August 14, 2000 (the “Amendment”) between Somerset andPharmacia (the Lease and the Amendment collectively, hereinafter the “MainLease”), which Main Lease demises the buildings commonly known as 1425Route 206 (“Building 1”) and 1405 Route 206 (“Building 2”;together with Building 1, each, a “Building” and together, the “Buildings”)and located in the planned commercial office development known as SomersetFinancial Center (the “Office Park”) and situated in the Township ofBedminster, County of Somerset, State of New Jersey; and

 

WHEREAS,pursuant to a certain Assignment and Assumption of Lease datedFebruary 27, 2001, Pharmacia assigned its entire interest in the MainLease to PCM Leasing Liability Company (“PCM”), a Delaware limitedliability company and an Affiliate (as such term is defined in the Main Lease)of Pharmacia, and PCM subsequently sublet the entire Demised Premises (as suchterm is defined in the Main Lease) to Sublessor (as an Affiliate of both PCMand Pharmacia) pursuant to that certain Sublease dated February 27, 2001;and

 

WHEREAS,Somerset sold the Office Park and assigned the Main Lease to Simon Halegoua,Isaak Ino Halegoua, Jacob Halegoua, The Germain Halegoua Retained

 

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Annuity Trustu/a dated June 16, 1995 f/b/o Rachel Ettie Halegoua, The Germain HalegouaRetained Annuity Trust u/a dated June 16, 1995 f/b/o Jason Erik Halegouaand The Germain Halegoua Retained Annuity Trust u/a dated June 16, 1995f/b/o Jamie Adam Halegoua, collectively d/b/a Jaygrace Co., which subsequentlysold the Office Park and assigned the Main Lease to Jaygrace Co., L.L.C., withan address at 1 Crescent Road, Port Jefferson, New York 11777 (“Overlandlord”);and

 

WHEREAS,Sublessor has opted to exercise its option under Paragraph 27 of the Main Leaseto sublease the premises described herein pursuant to this Sublease.

 

NOW,THEREFORE, in consideration of the mutual agreements herein contained and othergood and valuable consideration, receipt of which is hereby acknowledged, theparties hereto, intending to be legally bound, hereby agree as follows:

 

1.             BASIC SUBLEASE PROVISIONS AND DEFINITIONS. In addition to other terms defined elsewhere in this Sublease, thefollowing terms whenever used in this Sublease shall only have the meanings setforth in this paragraph, unless such meanings are expressly modified, limitedor expanded elsewhere herein:

 

(a)           Subleased Premises: The Subleased Premises shall consist of: (i) during the First PhasePeriod (as hereinafter defined), thirty-eight thousand eight hundred andthirty-three (38,833) square feet in Building 1 (which constitutes the entiresecond (2nd) floor), plus a local area network room (“LAN Room”))consisting of two thousand two hundred seventy-seven (2,277) square feet, plusan undivided share of the existing cafeteria (consisting of seven thousandseven hundred thirty-eight (7,738) square feet, of which Subtenant shall bedeemed for purposes of this Sublease to be renting one thousand three hundred fifty-five(1,355) square feet) located in Building 1 to be used in common with Sublessorduring the First Phase Period, for a

 

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cumulativetotal of forty-two thousand four hundred sixty-five (42,465) square feet inBuilding 1, all as depicted on Exhibit A-1 attached hereto and made apart hereof (the “First Phase Space”), all of which is part of the spaceleased under the Main Lease to Sublessor; (ii) during the Second Phase Period(as hereinafter defined), all of the remaining space leased to Sublessor underthe Main Lease in both Buildings, for a combined total of two hundredthirty-three thousand (233,000) square feet, which represents the entire spaceleased to Sublessor under the Main Lease and which Sublessor represents is thebasis that Sublessor is paying rent under the Main Lease, all as depicted on ExhibitA-2 attached hereto and made a part hereof.  During the First Phase Period, Subtenant shall have the right touse the lobby of Building 1 in common with Sublessor, provided such use shallbe in accordance with the terms and provisions of the Main Lease and thisSublease.  During the First PhasePeriod, Subtenant shall have the right to use the loading dock area of Building1 in common with Sublessor, provided such use is during Business Hours and doesnot interfere or adversely affect in a material way Sublessor’s use thereof,and provided further that such use shall be in accordance with the terms andprovisions of the Main Lease and this Sublease.  During the First Phase Period, any use of the loading dock areaof Building 1 after Business Hours by Subtenant shall be approved in advance bySublessor and Sublessor may, at its option, have a security representativepresent, the reasonable cost of which shall be borne solely by Subtenant.

 

(b)           Term:  The Term of thisSublease shall consist of the First Phase Period (as hereinafter defined) andthe Second Phase Period (as hereinafter defined).  The “First Phase Period” shall mean the period commencing on thedate (the “Commencement Date”) which is the later of: (i) thirty (30)days following the execution of this Sublease by Sublessor and Subtenant, or(ii) the date the consent of Overlandlord to this Sublease is received (subjectto the provisions

 

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of Paragraph32 of this Sublease), and ending on the First Phase Period ExpirationDate.  The “Second Phase Period” shallmean the period commencing on May 1, 2004 (the “Second Phase PeriodCommencement Date”) and ending on the Second Phase Period Expiration Date.

 

(c)           Expiration Date:

 

(i)            First Phase Period Expiration Date. The First Phase Period Expiration Date shall mean the period ending at11:59:59 p.m. on April 30, 2004.

 

(ii)           Second Phase Period Expiration Date. The Second Phase Period Expiration Date shall mean the period ending at11:59:59 p.m. on October 30, 2015.

 

All references to the term “ExpirationDate” in the Main Lease shall be deemed to refer to the Second Phase PeriodExpiration Date.

 

(d)           Renewal Terms: None.

 

(e)           Fixed Rent: The Fixed Rent is payable by Subtenant in the following Monthly FixedRent installments (each such installment being one-twelfth (1/12th) of FixedRent payable) during the Term of this Sublease, beginning on the date which isfour (4) months after the Commencement Date (the “Rent Commencement Date”):

 
| **Period**                               |   | **Annual Fixed  Rent** |         | **Monthly  Fixed Rent** |   | **Per Square  Foot** |   | **Square  Footage** |   |
|------------------------------------------|--------|------------------------|--------------|-------------------------|--------|----------------------|--------|---------------------|--------|
| Rent  Commencement Date – 7/31/2004 |   | $                      | 870,532.50   |                    | $      | 72,544.38            |   | $                   | 20.50  |   | 42,465 s.f. |   |
| 8/1/2004 –  10/31/2005              |   | $                      | 4,776,500.00 |                    | $      | 398,041.67           |   | $                   | 20.50  |   | 233,000 s.f. |   |
| 11/1/2005 –  10/31/2011             |   | $                      | 4,893,000.00 |                    | $      | 407,750.00           |   | $                   | 21.00  |   | 233,000 s.f. |   |
| 11/1/2011 –  10/31/2015             |   | $                      | 5,009,500.00 |                    | $      | 417,458.33           |   | $                   | 21.50  |   | 233,000 s.f. |   |

 

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Except as mayotherwise be provided in Paragraph 14 of this Sublease, in no event shall theRent Commencement Date be later than February 15, 2004.

 

(f)            Late Charge: If payment of any Fixed Rent or Additional Rent shall not have been paidby the fifth (5th) day after the date on which such amount was due and payablethen, in addition to, and without waiving or releasing, any other remedies ofSublessor, a late charge of three percent (3%) per annum over the prime rate asannounced by Citibank, N.A., or the then maximum lawful interest rate,whichever shall be less, from the date on which such amount was due, on theamount overdue shall be payable on demand by Subtenant to Sublessor as damagesfor Subtenant’s failure to make prompt payment.  The late charges for any month shall be payable on the first dayof the following month, and in default of payment of any late charges,Sublessor shall have (in addition to all other remedies) the same rights asprovided in this Sublease (including the provisions incorporated by reference)for nonpayment of Fixed Rent.  Nothingin this paragraph contained and no acceptance of late charges by Sublessorshall be deemed to extend or change the time for payment of Fixed Rent or AdditionalRent.

 

(g)           Subtenant’s Proportionate Share of theOffice Park:  During the First Phase Period, Subtenant’sProportionate Share of the Office Park shall be 18.2%.  During the Second Phase Period, Subtenant’sProportionate Share of the Office Park shall be 100%.

 

(h)           Letter of Credit Amount: Two Million Four Hundred Thousand Dollars ($2,400,000) at theCommencement Date, which shall be increased to Four Million Eight HundredThousand Dollars ($4,800,000) at the Second Phase Period Commencement Date, allin accordance with and subject to Paragraph 25 of this Sublease.

 

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(i)            Subtenant’s S.I.C. Code (as per mostrecent S.I.C. Manual as published by the United States Office of ManagementBudget):  7372

 

(j)            Designated Brokers: Binswanger and Williams Real Estate of New Jersey LLC.

 

(k)           Number of Subtenant Allocated ParkingSpaces:  During the First Phase Period, Subtenantshall be allocated and shall have the exclusive right to park its vehicles inall of the existing and future outdoor, above-ground visitor parking spaces(the “Visitor Spaces”) allocated to the Buildings in direct proportionto Subtenant’s Proportionate Share of the Office Park, as more particularlydepicted on Exhibit B attached hereto and made a part hereof; provided,however, Subtenant shall not be permitted to use any of the 108underground executive spaces (the “Garage Spaces”) at the Office Parkuntil the beginning of the Second Phase Period.  During the Second Phase Period, Subtenant shall have theexclusive right to 100% of the Visitor Spaces and 100% of the Garage Spacesallocated to each Building. Construction of any future parking spaces shall be at Subtenant’s solecost and expense and shall be constructed in accordance with the terms of thisSublease and the Main Lease. Notwithstanding anything herein to the contrary, any such spacesallocated to Subtenant shall not be marked as reserved for Subtenant, nor shallSublessor be responsible for policing the usage of such spaces.  At the written request of Subtenant,Sublessor agrees to reasonably cooperate and assist Subtenant, at no additionalcost, expense or significant time commitment to Sublessor, in securing theconsent of Overlandlord and/or the municipal authorities, to the extentrequired, for the expansion of the Visitor Spaces for the Office Park, as maybe provided under the approved site plan for the Office Park.  Sublessor makes no representation as towhether any such expansion of the Visitor

 

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Spaces shallbe permitted under any approved site plan for the Office Park and Subtenantacknowledges and agrees that its obligations under this Sublease shall be in noway conditioned upon whether Subtenant receives or is denied approval toconstruct the additional Visitor Spaces.

 

(l)            Base Year: For purposes of this Sublease, the Base Year shall be 2004.

 

(m)          Common Areas. For purposes of this Sublease, the definition of “Common Areas” as setforth in Paragraph 1(d) of the Main Lease shall be deemed deleted for thepurpose of incorporation by reference in this Sublease and is hereby replacedand restated in its entirety as follows:

 

“The ‘Common Areas’ shall consist of thoseparts of the Land and the Office Park designated by Landlord for the common useof Landlord, all tenants of both Buildings and any other persons entitled touse the same, such Common Areas to include, among other things, utility lines;pump stations; drainage basins; oil/water separators; drainage swales; pipesand outfalls; detention or retention ponds; and other facilities on or servingthe Land; non-exclusive parking facilities (including non-exclusive garage andsurface parking areas); walkways; access drives; exterior Building signage;exterior landscaped areas on the Land; and other facilities or Improvements (ashereinafter defined) owned, operated or maintained, in whole or in part, byLandlord for use by all tenants of both Buildings.”

 

(n)           Improvements. The definition of “Improvements” as set forth in Paragraph 1(e) of theMain Lease shall be deemed deleted for the purpose of incorporation byreference in this Sublease and is hereby replaced and restated in its entiretyas follows:

 

“For purposes of this Lease, the term‘Improvements’ shall mean and include all, whether existing now or in thefuture, buildings on the Land, including both Buildings, and/or appurtenantstructures or improvements of any kind on the Land, whether above, on, or belowthe Land surface, including, without limitation, outbuildings, loading areas,canopies, walls, waterlines, sewer,

 

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electrical and gas distributionfacilities, parking facilities (including garage and surface parking areas),walkways, curbs, roads, rights-of-way, access drive, fences, hedges, exteriorplantings, poles and signs.”

 

(o)           Building Real Estate Taxes: For purposes of this Sublease, the definition of “Building Real EstateTaxes” as set forth in Paragraph 3(a) of the Main Lease shall be deemed deletedfor the purpose of incorporation by reference in this Sublease and is herebyreplaced and restated in its entirety as follows:

 

“‘Building Real Estate Taxes’ shallmean all real property taxes and assessments now or hereafter imposed upon bothBuildings, the Demised Premises and other real property or improvements locatedupon, included with, or assessed as part of both Buildings or the DemisedPremises as well as any payments imposed upon both Buildings, the DemisedPremises and other real property or improvements located upon, included with,or assessed as part of both Buildings or the Demised Premises in-lieu of anysuch real property taxes and assessments. If, due to a change in the method of taxation or assessment, anyfranchise, income, profit or other tax, however designated, shall besubstituted by the applicable taxing authority, in whole or in part, for theBuilding Real Estate Taxes now or hereafter imposed, such franchise, income,profit or other tax shall be deemed to be included in the term “Building RealEstate Taxes.”  Building Real EstateTaxes shall not include any inheritance, estate, succession, transfer, gift,franchise, net income, capital stock tax, corporate, capital levy, stamp, ortransfer tax (except to the extent that, as provided for above, such tax issubstituted for and in lieu of Building Real Estate Taxes now or hereafterimposed) and shall not include Office Park Real Estate Taxes.”

 

(p)           Real Estate Taxes. For purposes of this Sublease, the definition of “Real Estate Taxes” asset forth in Paragraph 3(a) of the Main Lease shall be deemed deleted for thepurpose of incorporation by reference in this Sublease and is hereby replacedand restated in its entirety as follows:

 

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“‘Real Estate Taxes’ shall mean allBuilding Real Estate Taxes and Office Park Real Estate Taxes.”

 

(q)           Building Operating Expenses: For purposes of this Sublease, the definition of “Building OperatingExpenses” as set forth in Paragraph 3(a) of the Main Lease shall be deemeddeleted for the purpose of incorporation by reference in this Sublease and ishereby replaced and restated in its entirety as follows:

 

“‘Building Operating Expenses’shall mean the total of all the costs and expenses paid or incurred by Landlord(and/or others to the extent that costs paid or incurred by others arechargeable to Landlord) with respect to and to the extent reasonably allocableto the management, operation, maintenance and repair of both Buildings and/orthe Demised Premises and the required services provided tenants therein,excepting electrical energy and other utility expenses paid directly by Tenantto the applicable utility supplying said service pursuant to Paragraph 15 ofthis Lease, including, but not limited to: all utilities, including withoutlimitation, water, electricity, gas, lighting, sewer and waste disposal; airconditioning, ventilation and heating; maintenance of elevators; operation,maintenance, repair or replacement of utility lines, pump stations, drainagebasins, drainage swales, pipes and outfalls, oil water separators, and otherfacilities located in or serving both Buildings and/or the Demised Premises;maintenance and painting of non-tenanted areas (if any); fire, all-risk, boilerand machinery, sprinkler, apparatus, public liability, property damage, rent,and plate glass insurance, to the extent maintained; supplies; wages, salaries,disability benefits, pensions, hospitalization, retirement plans, groupinsurance, worker’s compensation insurance, payroll, social security,unemployment, and other similar taxes with respect to employees of Landlord andits managing agents (if any); uniforms and workers’ clothes for such employeesand the cleaning thereof and other similar employees benefits and expensesimposed on Landlord and/or its managing agents (if any) pursuant to law or toany collective bargaining agreement with respect to Landlord’s and/or itsmanaging agent’s employees (up to and including the Building manager for bothBuildings) to the extent and in such proportion that the services of suchemployees are dedicated to the operation of both Buildings and/or the DemisedPremises; the cost for a bookkeeper and for an accountant and any otherprofessional and consulting fees, including legal and auditing fees to theextent and in such

 

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proportion that the services of suchprofessional and consultants are dedicated to the operation of both Buildingsand/or the Demises Premises; the expenses, including payments to attorneys andappraisers, incurred by Landlord in connection with any application orproceeding wherein Landlord obtains or seeks to obtain reduction or refund ofthe Building Real Estate Taxes payable or paid; management fees of both Buildingsand/or the Demises Premises; and any other expenses of any kind whatsoeverreasonably incurred in managing, operating, maintaining, or repairing bothBuildings and/or the Demises Premises. Notwithstanding anything to the contrary provided in the foregoingdefinition, Building Operating Expenses shall not include any Office ParkOperating Expenses.”

 

2.             DEMISE AND ASSUMPTION. Sublessor hereby leases to Subtenant, and Subtenant hereby hires fromSublessor, the Subleased Premises together with the non-exclusive right to useany pedestrian easements and/or vehicular easements which may exist from timeto time for the benefit of owners and occupants of the Building then currentlyoccupied by Subtenant over any portion of the Land (as hereinafter defined) orany adjacent parcels in the Office Park, together with all other Common Areas(but subject to Subtenant’s right to park as provided in Paragraph 1(k) of thisSublease), for the Term commencing on the Commencement Date and ending on theSecond Phase Period Expiration Date, or such earlier date upon which the Termmay expire or be terminated pursuant to the provisions of this Sublease or theMain Lease or pursuant to law, upon the terms and conditions set forth in thisSublease.  The parcel of land on whicheach Building is located (the “Land”) and the Office Park are moreparticularly shown on the site plan attached hereto as Exhibit A.  This Sublease and the tenancy hereby createdshall cease and terminate at the Second Phase Period Expiration Date withoutthe necessity of any notice from either Sublessor or Subtenant to terminate thesame, and Subtenant hereby waives notice to vacate the Subleased Premises andSubtenant agrees that Subtenant shall have no interest in the SubleasedPremises upon the expiration of this Sublease. Subtenant

 

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herebyassumes all of the obligations of Sublessor as tenant under the Main Lease (tothe extent applicable to the space hereby sublet for the Term of this Sublease).  Subtenant shall be afforded reasonableaccess to the Subleased Premises during Business Hours prior to thecommencement of the First Phase Period and/or the Second Phase Period, upon atleast 48 hours advance written notice to Sublessor, for the sole purpose oftaking measurements therein to prepare for the commencement of the performanceof approved Alterations (as hereinafter defined) therein; provided, however,that Subtenant shall not have the right during such access to make anymodifications, improvements or alterations or take any invasive measureswhatsoever and Sublessor shall have the right to have a representative presentduring all such times.

 

3.             SUBORDINATE TO MAIN LEASE. This Sublease is and shall be subject and subordinate to the Main Leaseand to the matters to which the Main Lease is or shall be subject andsubordinate.  Sublessor represents thata full and complete copy of the Main Lease, as amended, has been delivered toSubtenant, with certain provisions regarding certain terms of the deal betweenSublessor and Overlandlord having been redacted, and Subtenant acknowledgesreceipt of the same. To Sublessor’s knowledge, the Main Lease is, as of thedate hereof, in full force and effect. To Sublessor’s knowledge, no event ofdefault has occurred under the Main Lease which remains uncured beyond theexpiration of all applicable notice and cure periods, and, to Sublessor’sknowledge, no event has occurred and is continuing which would constitute anevent of default under the Main Lease but for the requirement of the giving ofnotice and/or the expiration of the period of time to cure.

 

4.             INCORPORATION BY REFERENCE. The terms, covenants and conditions of the Main Lease are incorporatedherein by reference so that, except to the extent that they are

 

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inapplicableor modified by the provisions of this Sublease for the purpose of incorporationby reference, each and every term, covenant and condition of the Main Leasebinding or inuring to the benefit of the landlord thereunder shall, in respectof this Sublease, bind or inure to the benefit of Sublessor, and each and everyterm, covenant and condition of the Main Lease binding or inuring to thebenefit of the tenant thereunder shall, in respect of this Sublease, bind orinure to the benefit of Subtenant, with the same force and effect as if suchterms, covenants and conditions were completely set forth in this Sublease, andas if the words “Landlord” and “Tenant,” or words of similar import, whereverthe same appear in the Main Lease, were construed to mean, respectively,“Sublessor” and “Subtenant” in this Sublease, and as if the words “DemisedPremises,” or words of similar import, wherever the same appear in the MainLease, were construed to mean “Subleased Premises” in this Sublease, and as ifthe word “Lease,” or words of similar import, wherever the same appear in theMain Lease, were construed to mean this “Sublease.”  Subtenant shall pay upon demand for any special services orrequirements of Subtenant, including, without limitation, overtime airconditioning, extra cleaning, extra elevator use, and extra water use.  The time limits contained in the Main Leasefor the giving of notices, making of demands or performing of any act,condition or covenant on the part of the tenant thereunder, or for the exerciseby the tenant thereunder of any right, remedy or option, are changed for thepurposes of incorporation herein by reference by shortening the same in eachinstance by one-half the number of days, or by seven  (7) days, whichever is less, so that in each instance Subtenantshall have seven (7) days less or one-half the amount of time to observe orperform hereunder than Sublessor has as the tenant under the Main Lease.  Paragraphs I, II, III, IV, VI, VII, VIII,IX, X, XI, XII and XIII of the Preamble of the Main Lease shall be deemeddeleted for the purpose of incorporation by reference in this Sublease and are

 

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herebyreplaced by Paragraphs 1(a) through 1(k) of this Sublease.  Paragraph 1(a) of the Main Lease shall bedeemed deleted for the purpose of incorporation by reference in this Subleaseand is hereby replaced by Paragraph 2 hereof. Paragraphs 2(a) and 2(b) of the Main Lease shall be deemed deleted forthe purpose of incorporation by reference in this Sublease and are herebyreplaced by Paragraph 13 hereof. Paragraph 1(b), Paragraph 1(c)(ii) in its entirety after the firstsentence, and Paragraphs 2(c), 3(c), 3(d), 3(e) (after the second reference tothe word “Tenant” and continuing to the end of the provision), 3(f), 3(g),4(a), 4(b), 5(c), 5(f), 9, 15(a) (after the Second Phase Period CommencementDate), 15(c), 15(d), 15(e) (prior to the commencement of the Second PhasePeriod), 16(b), 18, 20, 22, 23, 27, and 32 and of the Lease, Paragraphs 3(b),3(c), 3(d), 3(e), 3(f), 3(g), 3(i), 3(j) and 3(l) of the Amendment, and ExhibitA, Exhibit A-1, Exhibit B, Exhibit C (including Schedule 1 andSchedule 2) and Exhibit E of the Main Lease shall be deemed deleted forthe purpose of incorporation by reference in this Sublease.  Any non-liability, indemnity or holdharmless provision in the Main Lease for the benefit of the landlord under theMain Lease, that is incorporated herein by reference, shall be deemed to inureto the benefit of Sublessor, Overlandlord, and any other person intended to bebenefited by said provision, for the purpose of incorporation by reference inthis Sublease.  Any right of Overlandlordof access or inspection and any right of Overlandlord to do work in thepremises demised under the Main Lease or in the Building(s) and any right ofOverlandlord in respect of rules and regulations shall be deemed to inure tothe benefit of Sublessor, Overlandlord, and any other person intended to bebenefited by said provision, for the purpose of incorporation by reference inthis Sublease.  If any of the expressprovisions of this Sublease shall conflict with any of the provisionsincorporated by reference, such conflict shall be resolved in every instance infavor of the express provisions of this Sublease.  If Sublessor receives, in connection with

 

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OperatingExpenses and Real Estate Taxes, any written notice, demand, statement orinvoice from Overlandlord or any third party vendor, Sublessor shall promptlygive a copy thereof to Subtenant, and Subtenant shall not have the right toaudit any such notices, demands, statements or invoices, nor shall Subtenanthave the right to audit Sublessor’s Statement (as hereinafter defined).

 

5.             OPERATING EXPENSES AND REAL ESTATE TAXES.

 

(a)           From and after January 1, 2005 andcontinuing until the Second Phase Period Expiration Date, Subtenant shall payto Sublessor as Additional Rent, in advance, without demand and without anysetoff or deduction, the amount (“Expense Adjustment Amount”) by whichthe total of the Real Estate Taxes in a Lease Year (as such term is defined inParagraph 3(a) of the Main Lease) and Operating Expenses (as such term is definedin Paragraph 3(a) of the Main Lease) in a Lease Year exceeds the total of RealEstate Taxes and Operating Expenses for the Base Year, respectively.  The Expense Adjustment Amount with respectto each Lease Year shall be paid in equal monthly installments, in advance, onthe first day of each month during such Lease Year in an amount estimated fromtime to time by Sublessor and communicated by written notice to Subtenant,together with the basis for such estimation. In the event that said estimate is delivered to Subtenant after thefirst day of January of the applicable Lease Year, said amount, soestimated, shall be payable as Additional Rent, in equal monthly installments,in advance, on the first day of each month over the balance of such Lease Year,with the number of installments being equal to the number of full calendarmonths remaining in such Lease Year. Subtenant shall continue to pay such estimated amount of ExpenseAdjustment Amount for each subsequent Lease Year thereafter on or before thefirst (1st) day of each month in advance

 

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withoutdemand and without any setoff or deduction, but the aforesaid estimated amountof the Expense Adjustment Amount may be adjusted and revised by Sublessor afterthe end of each calendar year during the Term on the basis of the projectedOperating Expenses and Real Estate Taxes for the subject lease year, whichprojection shall be given to Subtenant. Notwithstanding anything herein to the contrary, in event that the totalof the Real Estate Taxes in a Lease Year and Operating Expenses in a Lease Yearare equal to or less than the total of Real Estate Taxes and Operating Expensesfor the Base Year, the Expense Adjustment Amount for such Lease Year shall bezero and Subtenant shall not be entitled to any credit or refund whatsoever forsuch Lease Year on account of Operating Expenses and Real Estate Taxes, exceptas provided in subparagraph (b) below.

 

(b)           As promptly as practicable following theclose of each Lease Year, but in any event within one hundred twenty (120) daysafter such close (provided that Sublessor receives from Overlandlord astatement as described in the first sentence of Section 3(c)(iv) of theMain Lease within ninety (90) days following the end of each Lease Year, asprovided in Section 3(c)(iv) of the Main Lease). Sublessor shall prepareand deliver to Subtenant a statement (“Sublessor’s Statement”)specifying Operating Expenses and Real Estate Taxes for the applicable LeaseYear.  Sublessor shall compute theExpense Adjustment Amount for the applicable Lease Year based on OperatingExpenses and Real Estate Taxes specified in Sublessor’s Statement and Sublessorshall deliver to Subtenant a statement of such amount based upon said Sublessor’sStatement.  Subtenant shall pay anydeficiency to Sublessor as shown by such statement within ten (10) days afterreceipt of such statement.  If the totalof the estimated monthly installments paid by Subtenant during any Lease Yearexceeds the actual Expense Adjustment Amount due from Subtenant for such LeaseYear, Sublessor shall, provided

 

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Subtenant isnot in default hereunder, at Sublessor’s option, either (i) refund such excessor (ii) credit such excess against the most current monthly installment orinstallments due Sublessor for its estimate of the Expense Adjustment Amountfor the next following Lease Year.  Apro rata adjustment shall be made for a fractional Lease Year occurring duringthe term of this Sublease based upon the number of days of the term of thisSublease during said Lease Year as compared to three hundred sixty-five (365)days and all additional sums payable by Subtenant or credits due Subtenant as aresult of the provisions of this paragraph shall be adjusted accordingly.

 

(c)           From time to time during any applicableLease Year, Sublessor may reestimate, together with the basis for same, theamount of the Expense Adjustment Amount, and in such event Sublessor shallnotify Subtenant, in writing, of such reestimate in the manner above set forthand fix monthly installments for the then remaining balance of such Lease Yearin an amount sufficient to pay the reestimated amount over the balance of suchLease Year after giving credit for payments made by Subtenant on the previousestimate.

 

(d)           If, due to a future change in the methodof taxation or in the taxing authority, any tax or excise on rents, grossreceipts tax, or other tax, however described, is levied or assessed by the UnitedStates of America or the state in which the Office Park is located or anypolitical subdivision thereof, against Sublessor in respect to the Fixed Rent,Additional Rent, or other charges reserved under this Sublease or as a resultof Sublessor’s receipt of such rents or other charges accruing under thisSublease; the same shall be paid by Subtenant as Additional Rent hereunder; provided,however, Subtenant shall have no obligation to pay net income taxes ofSublessor.

 

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(e)           Notwithstanding anything herein to thecontrary, with respect to those certain non-infrastructure related operationand maintenance services set forth on Exhibit C attached hereto and madea part hereof, Sublessor agrees to reasonably cooperate with efforts to reviewoperations and current service providers and other vendors to identitycost-saving opportunities by identifying such other service providers andvendors that may provide substantially similar services to those set forth on ExhibitC at a lower cost, provided that the replacement of the current vendorshall not adversely affect Sublessor’s maintenance and repair obligations underthe Main Lease.  Notwithstanding theforegoing, all contracts for operation, maintenance and repair for theBuildings and the Office Park shall be entered into by Sublessor, atSublessor’s reasonable discretion, subject to the preceding sentence, and toParagraph 36 below.

 

(f)            In the event that the assessed value ofthe Office Park increases by an amount exceeding ten percent (10%) (the “TaxThreshold”) in a tax year, and provided that such increase in the assessedvalue of the Office Park was not caused by or the result of Subtenant’s actionsat the Office Park, and further provided that Subtenant is not then in defaultunder this Sublease, Subtenant, no more frequently than once every three (3)****years,shall have the right to submit a written request to Sublessor, which requestshall be considered by Sublessor, with respect to the contest or appeal of theincrease in the assessed value of the Office Park over the Tax Threshold.  Sublessor, in Sublessor’s sole and absolutediscretion, may elect to (i) file a tax appeal at any time, in accordance withthe requirements set forth in the Main Lease, or (ii) not file a tax appeal inwhich event any increase in excess of the Tax Threshold shall be borne bySublessor, at Sublessor’s sole cost and expense.  Notwithstanding the foregoing, in the event that Sublessor filesa tax appeal, whether or not such tax appeal was requested by Subtenant,

 

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Subtenantshall remain liable for payment of the entire Expense Adjustment Amount (whichshall include any and all taxes based on the then assessed value of the Office Park)regardless of the outcome of Sublessor’s tax appeal, including any additionalincreases in the assessed value of the Office Park.  If a contest or appeal made by Sublessor shall result in adecrease in the assessed value of the Office Park, all credits or refunds overthe Tax Threshold shall belong to and be remitted to Subtenant, and theremainder of any credits or refunds shall belong to and be remitted toSublessor.  Notwithstanding anythingherein to the contrary, the foregoing shall in no way limit or modifySublessor’s rights to file a tax appeal as provided in the Main Lease; provided,however, that any appraisers, attorneys and other representativesselected by  Sublessor for any taxappeal shall be subject to the reasonable approval of Subtenant.

 

6.             AMENITIES. Sublessor shall have sole and exclusive use of all existing amenities,including the fitness center, existing local area network room in Building 1(the “Sublessor LAN Room”), existing security room in Building 1 (the “SublessorSecurity Room”), company store, medical suite, training room, mailroom anddata center until the space occupied by these areas is delivered toSubtenant.  By way of example and notlimitation, until the Second Phase Period Commencement Date, Sublessor shallhave the sole and exclusive use of (i) the Sublessor LAN Room, and (ii) theSublessor Security Room.  During theFirst Phase Period, Sublessor and Subtenant shall share the cafeteria inBuilding 1 in common and Subtenant shall have access to the Sublessor LAN Roomsolely for the purpose of running and maintaining wires, provided that suchaccess does not unreasonably interfere with Sublessor’s operations therein, andprovided further that Sublessor shall have the right to have a representativepresent.

 

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7.             SECURITY/GUARD SERVICES. Beginning on the Commencement Date and continuing through the FirstPhase Period Expiration Date, the cost incurred by Sublessor to operate theexisting Building security system and guard service shall be distributedproportionately to Subtenant based on Subtenant’s Proportionate Share of theOffice Park.  Beginning on the SecondPhase Period Commencement Date, or such earlier time that Sublessor vacates theOffice Park, Subtenant, at its sole cost and expense, shall be responsible forthe operation of any security system and/or guard service.  Notwithstanding the foregoing, Subtenant, atSubtenant’s sole cost and expense, shall provide its own guard service and/orsecurity system on the second (2nd) floor of Building 1 until the First PhasePeriod Expiration Date.  Employees ofSubtenant will have to show an identification pass to Sublessor’s securityforces until the First Phase Period Expiration Date.  The parties acknowledge that safety and security devices,services and programs provided by Sublessor, if any, while intended to detercrime and ensure safety, may not in given instances prevent theft or othercriminal acts, or ensure safety of persons or property.  The risk that any safety or security device,service or program may not be effective, or may malfunction, or be circumventedby a criminal, is assumed by Subtenant with respect to Subtenant’s property andinterests, and Subtenant shall obtain insurance coverage against such lossesresulting from criminal acts, as may be further described in the MainLease.  During the First Phase Period,Subtenant agrees to cooperate in any reasonable safety or security programdeveloped by Sublessor, required under the Main Lease or required by law andduring the Second Phase Period, Subtenant agrees to cooperate in any reasonablesafety or security program required under the Main Lease or required by law.

 

8.             PERFORMANCE BY SUBLESSOR. Any obligation of Sublessor which is contained in this Sublease by theincorporation by reference of the provisions of the Main Lease

 

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may beobserved or performed by Sublessor using commercially reasonable efforts tocause Overlandlord to observe and/or perform the same, and Sublessor shall havea reasonable time to enforce its rights to cause such observance orperformance.  Sublessor shall not berequired to furnish, supply or install anything under any article of theMain Lease.  Subtenant shall not in any eventhave any rights in respect of the Subleased Premises greater than Sublessor’srights under the Main Lease, and, notwithstanding any provision to thecontrary, as to obligations that pertain to the Subleased Premises and arecontained in this Sublease by the incorporation by reference of the provisionsof the Main Lease, Sublessor shall not be required to make any payment orperform any obligation or provide any services.  Sublessor shall not be responsible for any failure orinterruption, for any reason whatsoever, other than as a direct result ofSublessor’s exclusive gross negligence, of the services or facilities that maybe appurtenant to or supplied at the Building(s) under the Main Lease orotherwise, including, without limitation, heat, air conditioning, water,electricity, elevator service and cleaning service, if any; and no failure tofurnish, or interruption of, any such services or facilities shall give rise toany (a) abatement, diminution or reduction of Subtenant’s obligations under thisSublease, (b) constructive eviction, whether in whole or in part, or (c)liability on the part of Sublessor, unless directly and exclusively caused bythe gross negligence of Sublessor. Notwithstanding the foregoing, (i) upon the occurrence of an event thatwould give Sublessor the right to withhold or offset against Fixed Rent (assuch term is defined in the Main Lease) as provided in Paragraph 17(b) of theMain Lease, Sublessor agrees to exercise such offset right following thewritten request of Subtenant, in which event Subtenant shall also be entitledto a proportionate reduction in the amount of Fixed Rent due to Sublessor underthis Sublease, and (ii) upon the occurrence of an event that would entitleSublessor to an abatement in Fixed Rent and Additional Rent (as such

 

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terms aredefined in the Main Lease) as provided in Paragraph 15(b) of the Main Lease,Sublessor agrees that Subtenant shall also be entitled to a proportionateabatement in the amount of Fixed Rent and Additional Rent due to Sublessorunder this Sublease.

 

9.             NO BREACH OF MAIN LEASE. Neither Sublessor nor Subtenant shall do or permit to be done any act orthing which may constitute a breach or violation of any term, covenant or conditionof the Main Lease by the tenant thereunder, whether or not such act or thing ispermitted under the provisions of this Sublease.

 

10.           NO PRIVITY OF ESTATE. Nothing contained in this Sublease shall be construed to create privityof estate or of contract between Subtenant and Overlandlord.

 

11.           RELEASES. Subtenant hereby releases Sublessor and Overlandlord or anyone claimingthrough or under Overlandlord by way of subrogation or otherwise to the extentthat Sublessor released Overlandlord and/or Overlandlord was relieved ofliability or responsibility pursuant to the provisions of the Main Lease, andSubtenant will cause its insurance carriers to include any clauses orendorsements in favor of Sublessor and Overlandlord which Sublessor is requiredto provide pursuant to the provisions of the Main Lease.

 

12.           RENT.  The rent reservedunder this Sublease for the Term hereof shall be and consist of: (a) the FixedRent payable beginning on the Rent Commencement Date in Monthly Fixed Rentinstallments as specified in Paragraph 1(e) of this Sublease in advance, on orbefore the first day of each and every calendar month during the Term; plus (b)such additional rent (“Additional Rent”) in an amount equal to theExpense Adjustment Amount, all charges for services and utilities supplied bySublessor hereunder, and any other charges as shall become due

 

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and payableby Subtenant hereunder whether or not the same is designated as AdditionalRent, including, without limitation, the reasonable expenses incurred bySublessor in the enforcement (after default by Subtenant hereunder beyondapplicable cure periods) of any of the agreements, covenants, or obligationsunder this Sublease and including reasonable legal fees that may accrue (afterdefault by Subtenant hereunder beyond applicable cure periods) in the eventsuit for rent or dispossess proceedings are necessary to obtain the possessionof the Subleased Premises or to collect the rent; which Additional Rent shallbe payable as hereinafter provided.  Allrent due and payable by Subtenant hereunder shall be paid promptly when due,without notice or demand therefor, and without deduction, abatement,counterclaim or setoff of any amount or for any reason whatsoever.  All Additional Rent and other chargespayable hereunder, which are not due and payable on a monthly basis during theTerm, unless otherwise specified herein, shall be due and payable within thirty(30) days of delivery by Sublessor to Subtenant of notice to pay the same.  Fixed Rent and Additional Rent shall be paidto Sublessor in lawful money of the United States at the address of Sublessorset forth at the head of this Sublease or to such other person and/or at suchother address as Sublessor may from time to time designate by notice toSubtenant.  No payment by Subtenant orreceipt by Sublessor of any lesser amount than the amount stipulated to be paidhereunder shall be deemed other than on account of the earliest stipulatedFixed Rent or Additional Rent; nor shall any endorsement or statement on anycheck or letter be deemed an accord and satisfaction, and Sublessor may acceptany check or payment without prejudice to Sublessor’s right to recover thebalance due or to pursue any other remedy available to Sublessor.  Any provision in the Main Lease referring toFixed Rent or Additional Rent incorporated herein by reference shall be deemedto refer to the Fixed Rent and Additional Rent due under this Sublease, exceptas may otherwise be expressly provided herein. If, in the

 

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event of acasualty or condemnation, Sublessor is entitled to a rent abatement pursuant toParagraphs 10 or 26 of the Main Lease, Subtenant shall be entitled to aproportionate abatement in the Fixed Rent due under this Sublease, providedthat Subtenant’s possession of the Subleased Premises is affected by suchcasualty or condemnation.

 

13.           USE.  Subtenant shalluse and occupy the Subleased Premises for the Permitted Use (as set forth inParagraph V of the Preamble of the Main Lease) and for no other purposewhatsoever.  To the extent required ofSublessor as Tenant under the Main Lease, Subtenant, at its expense, shallcause the Subleased Premises to comply with the certificate of occupancyrelating thereto and shall cause the Subleased Premises to comply with alllaws, statutes, ordinances, orders, rules, and regulations of all federal,state and municipal governments and the appropriate agencies, officers,departments, boards and commissions thereof, and the board of fire underwritersand/or the fire insurance rating organization or similar organizationperforming the same or similar functions, whether now or hereafter in force,applicable to the Subleased Premises. Subtenant shall comply with all provisions of this Sublease and the MainLease regarding maintenance of the Subleased Premises.

 

14.           POSSESSION; CONDITION OF SUBLEASEDPREMISES SPACE “AS IS”.  Sublessor shall,at Sublessor’s cost, deliver the Subleased Premises to Subtenant on theCommencement Date and the Second Phase Period Commencement Date, as the casemay be, in “broom-clean” condition and Subtenant represents that Subtenant ishiring the Subleased Premises “as is,” without any agreements, representations,warranties, obligations or understandings on the part of Sublessor to performany alterations, repairs or improvements thereto unless expressly providedunder this Sublease, and, except as otherwise provided in the

 

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Main Lease,subject to all applicable zoning, municipal, county and state laws, ordinances,covenants of record and regulations governing and regulating the use of theSubleased Premises, and accepts this Sublease subject thereto and to allmatters disclosed thereby.  If for anyreason Sublessor cannot deliver possession of the Subleased Premises toSubtenant at the beginning of the First Phase Period or the Second PhasePeriod, this Sublease shall not be void or voidable, nor shall Sublessor beliable to Subtenant for any loss or damage resulting therefrom; provided,however, that in the event that Sublessor fails to vacate the SubleasedPremises as required hereunder, then Subtenant shall be entitled to one (1) dayof free Fixed Rent for every day of delay. Notwithstanding the foregoing but subject to the preceding sentence,Subtenant’s obligation to pay its Monthly Fixed Rent installments shallcommence on a date no later than February 15, 2004, unless the partieshereto agree in writing to extend the date required for obtaining the consentof Overlandlord (as more particularly described in Paragraph 32 of thisSublease) in which event the Rent Commencement Date shall be moved forward byone (1) day for each additional day that the parties agree to extend forreceiving Overlandlord’s consent; provided, however, that in noevent shall the Rent Commencement Date be moved to a date later thanFebruary 15, 2004 if the delay in receiving Overlandlord’s consent iscaused by the act or omission of Subtenant. If for any reason whatsoever, the Commencement Date is postponed, theSecond Phase Period Expiration Date shall not be changed.  Except as provided in Paragraph 4 of thisSublease, in making and executing this Sublease, Subtenant has not relied uponor been induced by any statements or representations of any person (other thanthose, if any, set forth expressly in this Sublease) in respect of the physicalcondition of the Subleased Premises or of any other matter or thing affectingthe Subleased Premises or this transaction which might be pertinent inconsidering the leasing of the Subleased Premises or the execution of thisSublease.

 

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Subtenant hasrelied solely on such representations, if any, as are expressly made herein andon such investigations, examinations and inspections as Subtenant has chosen tomake or have made, and Subtenant agrees that no claim or liability shall beasserted by Subtenant against Sublessor for, and Sublessor shall not be liable byreason of, breach of any representations or promises not expressly stated inthis Sublease.  Subtenant acknowledgesthat Sublessor has afforded Subtenant the opportunity for full and completeinvestigations, examinations and inspections.

 

15.           BUILDING DIRECTORY AND EXTERIOR SIGNAGE. Sublessor and Subtenant shall agree on signage to be used beforeMay 1, 2004, and each party shall pay for the cost of signage attributableto such party.  After that date,Subtenant shall have all signage rights described in Paragraph 9 of the MainLease and Paragraph 3(i) of the Amendment.

 

16.           HVAC SERVICE. Subject to availability, andprovided that Subtenant is not in default hereunder, additional heating,ventilating and air conditioning (“HVAC”) service during the hours of 8p.m. through 3 a.m., Monday through Friday, and the hours of 3 p.m. through 3a.m. on Saturday and Sunday may be made available to Subtenant from time totime during the First Phase Period.  Anysuch requests by Subtenant for additional HVAC service shall be made bySubtenant to Sublessor or its manager at least forty-eight (48) hours beforeSubtenant’s intended usage of such service. During the First Phase Period, the additional HVAC service shall becharged to Subtenant based on its proportionate usage at the rate of $35.00 perhour, and shall be paid to Sublessor as Additional Rent within thirty (30) daysafter receipt of Sublessor’s invoice therefor.

 

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17.           CONSENTS AND APPROVALS. In any instance when Sublessor’s consent or approval is required underthis Sublease, Sublessor’s refusal to consent to or approve any matter or thingshall be deemed reasonable if such consent or approval has not been obtainedfrom Overlandlord, where such consent or approval of Overlandlord is requiredunder the Main Lease.  In the event thatSubtenant shall seek the approval by or consent of Sublessor and Sublessorshall fail or refuse to give such consent or approval, Subtenant shall not beentitled to any damages for any withholding or delay of such approval orconsent by Sublessor, it being intended that Subtenant’s sole remedy shall bean action for injunction or specific performance and that said remedy of anaction for injunction or specific performance shall be available only in thosecases, where Sublessor shall have expressly agreed in writing not tounreasonably withhold or delay its consent; provided, however,that Sublessor agrees, at the request of Subtenant and at no additional cost,expense or significant time commitment to Sublessor, to pursue the consent ofOverlandlord and enforce its rights under the Main Lease with respect to suchconsent, provided that the foregoing shall in no event require Sublessor tobring any cause of action against Overlandlord at law or in equity, including,but not limited to, any cause of action for money damages.

 

18.           NOTICES. All notices, consents, approvals, demands and requests which arerequired or desired to be given by either party to the other hereunder shall bein writing and shall be sent by United States registered or certified mail anddeposited in a United States post office, return receipt requested and postageprepaid or by a nationally recognized overnight service.  Notices, consents, approvals, demands and requestswhich are served upon Sublessor or Subtenant in the manner provided hereinshall be deemed to have been given or served for all purposes hereunder on thedate of delivery or refusal of delivery. All notices, consents,

 

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approvals,demands and requests shall be sent to the parties at the following respectiveaddresses:

 

ifintended for Sublessor:

 

Pharmacia& Upjohn Company

c/oPfizer Inc.

235East 42nd Street

NewYork, New York 10017

Attention:Ronald J. Sarno, Director, Real Estate

 

andto:

 

PfizerInc.

235East 42nd Street

NewYork, New York 10017

Attention:Kent S. Bernard, Esquire

 

witha copy to:

 

Morgan,Lewis & Bockius LLP

1701Market Street

Philadelphia,Pennsylvania 19103

Attention:J.J. Broderick, Esquire

 

 

ifintended for Subtenant:

 

priorto the Second Phase Period Commencement Date:

 

DendriteInternational

1200Mt. Kemble Avenue

Morristown,New Jersey 07960

Attention:General Counsel

 

 

afterthe Second Phase Period Commencement Date:

 

DendriteInternational

SomersetFinancial Center

1405& 1425 Route 206 South

Bedminster,New Jersey 07921

Attention:General Counsel

 

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witha copy to:

 

Pitney,Hardin, Kipp & Szuch LLP

P.O.Box 1945

Morristown,New Jersey 07962

Attention:  Lawrence F. Reilly, Esquire

 

or at suchother place as one party may from time to time designate in a notice given tothe other party in accordance with the provisions of this Paragraph 18.

 

19.           TERMINATION OF MAIN LEASE.  If for any reason the term of the Main Lease shall terminate priorto the expiration date of this Sublease, this Sublease shall thereupon beterminated and, unless the termination results from the exclusive default ofSublessor thereunder, Sublessor shall not be liable to Subtenant by reasonthereof; provided, however, that unless Subtenant is in defaultunder this Sublease beyond any applicable grace period, or unless Subtenant isallowed to continue in possession of the Subleased Premises as a result of adirect relationship between Subtenant and Overlandlord, Sublessor shall notterminate or consent to the termination of the Main Lease without the priorwritten consent of Subtenant.

 

20.           ASSIGNMENT AND SUBLETTING. Subtenant shall not, by operation of law or otherwise, assign, sell,mortgage, pledge or in any manner transfer this Sublease or any interesttherein, or sublet the Subleased Premises or any part or parts thereof, orgrant any concession or license or otherwise permit occupancy of all or any partof the Subleased Premises by any person, without the written consent of bothSublessor and Overlandlord; provided, however, that in the eventOverlandlord consents to a proposed assignment, sublease or other transfer,then the consent of Sublessor to such assignment, sublease or other transfershall not be required.  Neither theconsent of Sublessor to an assignment, subletting, concession, or license,

 

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nor thereferences in this Sublease to assignees, subtenants, concessionaires orlicensees, shall in any way be construed to relieve Subtenant of therequirement of obtaining the consent of Sublessor and Overlandlord to anyfurther assignment or subletting or to the making of any assignment, subletting,concession or license for all or any part of the Subleased Premises.  In the event Sublessor consents to anyassignment of this Sublease, the assignee shall execute and deliver toSublessor an agreement in form and substance reasonably satisfactory to Sublessorand satisfactory to Overlandlord whereby the assignee shall assume all ofSubtenant’s obligations under this Sublease. Notwithstanding any assignment or subletting, including, withoutlimitation, any assignment or subletting permitted or consented to, theoriginal Subtenant named herein and any other person(s) who at any time was orwere Subtenant shall remain fully liable on this Sublease, and if this Subleaseshall be amended, or modified, the original Subtenant named herein and anyother person(s) who at any time was or were Subtenant shall remain fully liableon this Sublease as so amended or modified. Any violation of any provision of this Sublease by any assignee,subtenant or other occupant shall be deemed a violation by the originalSubtenant named herein, the then Subtenant and any other person(s) who at anytime was or were Subtenant, it being the intention and meaning that theoriginal Subtenant named herein, the then Subtenant and any other person(s) whoat any time was or were Subtenant shall all be liable to Sublessor for any andall acts and omissions of any and all assignees, subtenants and other occupantsof the Subleased Premises.  If thisSublease shall be assigned or if the Subleased Premises or any part thereofshall be sublet or occupied by any person or persons other than the originalSubtenant named herein, Sublessor may collect rent from any such assigneeand/or any subtenants or occupants, and apply the net amounts collected to theFixed Rent and Additional Rent, but no such assignment, subletting, occupancyor collection shall be deemed a waiver of

 

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any of theprovisions of this Paragraph 20, or the acceptance of the assignee, subtenantor occupant as Subtenant, or a release of any person from the furtherperformance by such person of the obligations of Subtenant under this Sublease.

 

21.           INSURANCE. Subtenant shall maintain throughout the Term of this Sublease theinsurance in respect of the Subleased Premises required under Paragraph 10 ofthe Main Lease, with Sublessor and Overlandlord as additional namedinsureds.  Subtenant shall deliver toSublessor and Overlandlord fully paid for policies or certificates issued bythe carriers or their duly authorized agents (and not by a broker) prior to theCommencement Date.  Subtenant shallprocure and pay for renewals of such insurance from time to time before theexpiration thereof, and Subtenant shall deliver to Sublessor and Overlandlordsuch renewal policies or certificates at least 30 days before the expiration ofany existing policy.  All such policiesshall meet the requirements in the Main Lease and shall be issued by companieslicensed to do business in the State of New Jersey, and all such policies shallcontain a provision whereby the same cannot be cancelled or modified unlessSublessor and Overlandlord are given at least thirty (30) days’ prior writtennotice by certified or registered mail of such cancellation or modification.

 

22.           ESTOPPEL CERTIFICATES. Subtenant shall, within five (5) business days after each and everyrequest by Sublessor (but not more than twice in any calendar year), execute,acknowledge and deliver to Sublessor a statement in writing executed andacknowledged by Subtenant containing all of the information set forth inParagraph 8(a) of the Main Lease.  Anysuch statement delivered pursuant to this section may be relied upon byany prospective assignee or transferee of the leasehold estate under the Main Lease.

 

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23.           ALTERATIONS; TENANT ALLOWANCE.

 

(a)           Subtenant shall not make or cause, sufferor permit the making of any alteration, addition, change, replacement,installation or addition (“Alterations”) in or to the Subleased Premiseswithout obtaining the prior written consent of Sublessor and Overlandlord ineach instance, to the extent required and otherwise in accordance with theprovisions of Article 6 of the Main Lease which is incorporated herein byreference; provided, however, that (i) Sublessor agrees that itsconsent shall not be required for any Alteration which is approved in writingby Overlandlord under the Main Lease, (ii) Subtenant shall not be required toremove at the end of the Term any Alterations, if any, previously made by Sublessorand required to be removed under the terms of the Main Lease, or with respectto which Overlandlord’s consent is not required under the Main Lease, unlessSubtenant’s Alterations affect in any manner an Alteration performed bySublessor, in which event, the removal of the same shall be Subtenant’sresponsibility at its sole cost and expense; and (iii) Sublessor shall not havethe right to require Subtenant to remove any Alteration which Overlandlord doesnot require to be removed pursuant to the Main Lease.  Sublessor has no knowledge of any notice from Overlandlordrequiring the removal of any Alteration made by Sublessor and consequently,subject to Subsection (iii) of the previous sentence, any Alterations madeafter the date hereof requiring removal shall be the responsibility ofSubtenant.

 

(b)           As a material inducement to Subtenant toenter into this Sublease, Sublessor shall pay to Subtenant an allowance in theamount of Three Million Four Hundred Ninety-Five Thousand Dollars ($3,495,000)(the “Tenant Allowance”). Subtenant shall be permitted to use the Tenant Allowance to performAlterations to the Subleased Premises,

 

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provided thatsuch Alterations are performed in accordance with the terms of this Subleaseand the applicable provisions of the Main Lease.  The Tenant Allowance shall be payable by Sublessor to Subtenantafter Subtenant provides to Sublessor copies of estimates from the contractorsand subcontractors performing such Alterations and other supportingdocumentation reasonably required by Sublessor evidencing the estimated cost ofsuch Alterations; provided, however, that at the beginning of theFirst Phase Period, in no event shall Sublessor pay an amount in excess ofSubtenant’s Proportionate Share of the Office Park for the First Phase Periodmultiplied by the Tenant Allowance (i.e., 18.2% x $3,495,000, or $636,090.00);and provided, further, that the balance of the Tenant Allowanceshall be paid at the beginning of the Second Phase Period in accordance withthe foregoing provisions of this sentence but in no event shall Sublessor payan amount in excess of $3,495,000, less any amounts paid to Subtenant duringthe First Phase Period.  Subject to Subtenant’sobligations pursuant to Paragraph 23(d) below, if Subtenant delivers a noticeto Sublessor prior to satisfaction of the conditions set forth below thatSubtenant is in dispute with any contractors, subcontractors or materialmen,and refuses to make payments at such time or if any contracts provide forretainage which has not then been finally paid, then any unpaid portion of theTenant Allowance shall continue to be held for the benefit of Subtenant bySublessor.  It is expressly understoodand agreed that Subtenant shall complete, at its expense, any Alterationsundertaken whether or not the Tenant Allowance is sufficient to fund suchcompletion.  Within thirty (30) days ofcompletion of any Alterations, Subtenant shall deliver to Sublessor (i) generalreleases and waivers of lien, from all contractors, subcontractors andmaterialmen involved in the performance of any Alterations and the materialsfurnished in connection therewith, and (ii) a certificate signed by an officerof Subtenant and by Subtenant’s general contractor stating that allcontractors, subcontractors and materialmen have

 

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been paid forall work with respect to such Alterations and materials furnished through suchdate.  Notwithstanding anything to thecontrary contained herein, Sublessor shall have no obligation to pay all or anyportion of the Tenant Allowance so long as Subtenant is in default under thisSublease, or an event has occurred and is continuing which, with the giving ofnotice or the passage of time or both, would constitute a default on the partof Subtenant under this Sublease.  Tothe extent that Subtenant defaults in any obligation under this Sublease,Sublessor may setoff any such obligation or amount against any amounts owed bySublessor to Subtenant under this Sublease.

 

(c)           Sublessor agrees to reasonably cooperatewith Subtenant, at no additional cost, expense or significant time commitmentto Sublessor, with Subtenant’s efforts to obtain any permits, licenses and/orapprovals, including the approval of Overlandlord, that are necessary ordesirable in connection with any work to be performed or installations to bemade by or for Subtenant in accordance with this Sublease.

 

(d)           Subtenant shall pay all costs for theAlterations when due (including, but not limited to, any and all additionalutility, security and other costs attributable to or incurred as a result ofthe Alterations directly to the vendor providing such services).  Subtenant shall keep the Subleased Premises,the Buildings, the Office Park and this Sublease free from any mechanics’,materialman’s, architect’s, engineer’s or similar liens or encumbrances, andany claims therefor, or stop or violation notices, in connection with anyAlterations.  Subtenant shall giveSublessor notice at least thirty (30) days prior to the commencement of anyAlterations.  Subtenant shall remove anyclaim, lien or encumbrance, or stop or violation notices that are filed ofrecord, by bond or otherwise within ten (10) days after notice bySublessor.  If Subtenant fails to do so,Sublessor may pay the amount (or any portion thereof) or take such other actionas

 

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Sublessordeems necessary in its sole and absolute discretion, including, withoutlimitation, drawing against the Letter of Credit (as hereinafter defined), toremove such claim, lien or encumbrance, or stop or violation notices, withoutbeing responsible for investigating the validity thereof.  The amount so paid and costs incurred bySublessor shall be deemed Additional Rent under this Sublease payable upondemand, without limitation as to other remedies available to Sublessor.  Nothing contained in this Sublease shallauthorize Subtenant to do any act which shall subject Overlandlord’s title to,or any lender’s interest in, the Subleased Premises, the Buildings, the OfficePark or this Sublease to any such claims, liens or encumbrances, or stop orviolation notices, whether claimed pursuant to statute or other law or expressor implied contract.

 

(e)           Sublessor shall pay to Subtenant anadditional tenant allowance in the amount of One Million Three HundredNinety-Four Thousand One Hundred Forty and 47/100 Dollars ($1,394,140.47) (the“Additional Tenant Allowance”). The Additional Tenant Allowance shall be payable by Sublessor toSubtenant in three (3) equal installments, payable as follows: (i) $464,713.49upon Sublessor’s receipt of Subtenant’s second (2nd) Monthly Fixed Rentinstallment; (ii) $464,713.49 upon Sublessor’s receipt of Subtenant’s seventh(7th) Monthly Fixed Rent installment; and (iii) $464,713.49 upon Sublessor’sreceipt of Subtenant’s thirteenth (13th) Monthly Fixed Rent installment.

 

24.           RIGHT TO CURE SUBTENANT’S DEFAULTS. If Subtenant shall at any time fail to make any payment or perform anyother obligation of Subtenant hereunder, then Sublessor shall have the right,but not the obligation, after three (3) days’ notice to Subtenant, orimmediately without notice to Subtenant in the case of any emergency, andwithout waiving or releasing Subtenant from any obligations of Subtenanthereunder, to make such payment or perform such other obligation of Subtenantin such manner and to such extent as Sublessor shall

 

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deemnecessary, and in exercising any such right, to pay any incidental costs andexpenses, employ attorneys, and incur and pay reasonable attorneys’ fees.  Subtenant shall pay to Sublessor upon demandall sums so paid by Sublessor and all incidental costs and expenses of Sublessorin connection therewith, as Additional Rent, provided such sums and costs werereasonable, together with a Late Charge, running from the date of the making ofsuch expenditures.

 

25.           LETTER OF CREDIT.

 

(a)           On the Commencement Date and as acondition precedent to the effectiveness of this Sublease, Subtenant shalldeliver to Sublessor, as protection for the full and faithful performance bySubtenant of all of its obligations under this Sublease and for all losses anddamages Sublessor may suffer as a result of any breach or default by Subtenantunder this Sublease, an irrevocable and unconditional negotiable standby letterof credit (the “Letter of Credit”), substantially in the form attachedhereto as Exhibit D and containing the terms required herein, payable inNew York, New York, running in favor of Sublessor and issued by a solvent,nationally recognized bank with a long term rating of BBB or higher, in theamount of Two Million Four Hundred Thousand Dollars ($2,400,000) (the “Letterof Credit Amount”) as set forth in Paragraph 1(h) hereof.  The Letter of Credit Amount shall beincreased to Four Million Eight Hundred Thousand Dollars ($4,800,000) on theSecond Phase Period Commencement Date. The Letter of Credit shall (i) be “callable” at sight, irrevocable andunconditional, (ii) be maintained in effect, whether through renewal orextension, for the period from the Commencement Date and continuing until thedate (the “LC Expiration Date”) that is forty-five (45) days after theexpiration of the Term, and Subtenant shall deliver a new Letter of Credit orcertificate of renewal or extension to Sublessor at least thirty (30) daysprior to the expiration of

 

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the Letter ofCredit then held by Sublessor, without any action whatsoever on the part ofSublessor, (iii) be fully assignable by Sublessor, its successors and assignsin conjunction with an assignment of the Main Lease by Sublessor, provided thatSublessor or its assignee pays any fees of the issuing bank to effect suchtransfer, (iv) permit partial draws and multiple presentations and drawings,and (v) be otherwise subject to the Uniform Customs and Practices forDocumentary Credits (1990-Rev) International Chamber of Commerce Publication#500 or the International Standby Practices-ISP 98, International Chamber ofCommerce Publication #590.  The form andterms of the Letter of Credit (and the bank issuing the same (the “Bank”))shall be acceptable to Sublessor, in Sublessor’s reasonable discretion.  Sublessor shall have the right to draw downan amount up to the face amount of the Letter of Credit if any of the followingshall have occurred or be applicable: (1) such amount is due to Sublessor under the terms and conditions ofthis Sublease, or (2) Subtenant has filed a voluntary petition under the U. S.Bankruptcy Code or any state bankruptcy code (collectively, “Bankruptcy Code”),or (3) an involuntary petition has been filed against Subtenant under theBankruptcy Code and has not been dismissed within ninety (90) days afterfiling, or (4) the Letter of Credit is not renewed or replaced within the timeperiod required by this Paragraph 25.

 

(b)           The Letter of Credit shall also providethat Sublessor, its successors and assigns, may, at any time and without noticeto Subtenant and without first obtaining Subtenant’s consent thereto, transfer(one or more times) all or any portion of its interest in and to the Letter ofCredit to another party, person or entity as a part of the assignment bySublessor of its rights and interests in and to this Sublease.  In connection with any such transfer of theLetter of Credit by Sublessor, Subtenant shall, at Subtenant’s sole cost andexpense, execute and submit to the Bank such applications, documents andinstruments as may be necessary to effectuate such

 

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transfer;provided that Sublessor shall be responsible for paying the Bank’s transfer andprocessing fees in connection therewith.

 

(c)           If, as a result of any drawing bySublessor on the Letter of Credit, the amount of the Letter of Credit shall beless than the Letter of Credit Amount, Subtenant shall, within ten (10)business days after receipt of notice of same, provide Sublessor withadditional letter(s) of credit in an amount equal to the deficiency, and anysuch additional letter(s) of credit shall comply with all of the provisions ofthis Paragraph 25, and if Subtenant fails to comply with the foregoing,notwithstanding anything to the contrary contained in Paragraph 25(a) above,the same shall constitute an incurable default by Subtenant.  Subtenant further covenants and warrantsthat it will neither assign nor encumber the Letter of Credit or any partthereof and that neither Sublessor nor its successors or assigns will be boundby any such assignment, encumbrance, attempted assignment or attemptedencumbrance.  Without limiting thegenerality of the foregoing, if the Letter of Credit expires earlier than theLC Expiration Date, Sublessor will accept a renewal thereof (such renewalletter of credit to be in effect and delivered to Sublessor, as applicable, notlater than thirty (30) days prior to the expiration of the Letter of Credit),which shall be irrevocable and subject to renewal as above provided through theLC Expiration Date upon the same terms as the expiring Letter of Credit or suchother terms as may be acceptable to Sublessor in its sole discretion.  However, if the Letter of Credit is nottimely renewed, or if Subtenant fails to maintain the Letter of Credit in theamount and in accordance with the terms set forth in this Paragraph 25,Sublessor shall have the right to present the Letter of Credit to the Bank inaccordance with the terms of this Paragraph 25, and the proceeds of the Letterof Credit may be applied by Sublessor against any Fixed Rent and/or AdditionalRent payable by Subtenant under this Sublease that is not paid when due and/orto pay for all losses

 

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and damagesthat Sublessor has suffered or that Sublessor reasonably estimates that it willsuffer as a result of any breach or default by Subtenant under thisSublease.  Any unused proceeds shallconstitute the property of Sublessor and need not be segregated fromSublessor’s other assets.  Sublessoragrees to pay to Subtenant within thirty (30) days after the LC Expiration Datethe amount of any proceeds of the Letter of Credit received by Sublessor andnot applied against any Fixed Rent and/or Additional Rent payable by Subtenantunder this Sublease that was not paid when due or used to pay for any lossesand/or damages suffered by Sublessor (or reasonably estimated by Sublessor thatit will suffer) as a result of any breach or default by Subtenant under thisSublease; provided, however, that if prior to the LC ExpirationDate a voluntary petition is filed by Subtenant, or an involuntary petition isfiled against Subtenant by any of Subtenant’s creditors, under the U.S.Bankruptcy Code or any state bankruptcy code, then Sublessor shall not beobligated to make such payment in the amount of the unused Letter of Creditproceeds until either all preference issues relating to payments under thisSublease have been resolved in such bankruptcy or reorganization case or suchbankruptcy or reorganization case has been dismissed.

 

(d)           Subtenant hereby acknowledges and agreesthat Sublessor is entering into this Sublease in material reliance upon theability of Sublessor to draw upon the Letter of Credit upon the occurrence ofany breach or default on the part of Subtenant under this Sublease.  If Subtenant shall breach any provision ofthis Sublease or otherwise be in default hereunder, Sublessor may, but withoutobligation to do so, and without notice to Subtenant, draw upon the Letter ofCredit, in part or in whole, to cure any breach or default of Subtenant and/orto compensate Sublessor for any and all damages of any kind or nature sustainedor which Sublessor reasonably estimates that it will sustain resulting fromSubtenant’s breach or default hereunder. The use, application or retention of the Letter of Credit, or anyportion thereof, by

 

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Sublessorshall not prevent Sublessor from exercising any other right or remedy providedby this Sublease or by any applicable law, it being intended that Sublessorshall not first be required to proceed against the Letter of Credit, and shallnot operate as a limitation on any recovery to which Sublessor may otherwise beentitled.  Subtenant agrees not to interferein any way with payment to Sublessor of the proceeds of the Letter of Credit,either prior to or following a “draw” by Sublessor of any portion of the Letterof Credit, regardless of whether any dispute exists between Subtenant andSublessor as to Sublessor’s right to draw upon the Letter of Credit.  No condition or term of this Sublease shallbe deemed to render the Letter of Credit conditional to justify the issuer ofthe Letter of Credit in failing to honor a drawing upon such Letter of Credit ina timely manner.  Subtenant agrees andacknowledges that (a) the Letter of Credit constitutes a separate andindependent contract between Sublessor and the Bank, (b) Subtenant is not athird party beneficiary of such contract, (c) the Letter of Credit and theproceeds thereof are solely the property of Sublessor and Subtenant shall haveno right to require payment of any portion thereof except as provided in thisParagraph 25, and (d) in the event Subtenant becomes a debtor under any chapterof the U.S. Bankruptcy Code, neither Subtenant, any trustee, nor Subtenant’sbankruptcy estate shall have any right to restrict or limit Sublessor’s claimand/or rights to the Letter of Credit and/or the proceeds thereof byapplication of Section 502(b)(6) of the U.S. Bankruptcy Code orotherwise.  Any reference herein to adefault or breach shall mean the continuation of such event after theexpiration of any applicable grace period.

 

(e)           Provided that, as of each “ReductionDate” set forth below, Subtenant has not previously been nor is Subtenant thenin breach of or in default under this Sublease, beyond the expiration of anyapplicable grace period, and provided further that, on or prior to theapplicable Reduction Date, Subtenant tenders to Sublessor a replacement Letterof Credit or a

 

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certificateof amendment to the existing Letter of Credit, conforming in all respects tothe requirements of this Paragraph 25, in the amount of the applicable Letterof Credit Amount as of such Reduction Date, the Letter of Credit Amount shallbe reduced in accordance with the following schedule:

 
| **Reduction Date**                                               |   | **Letter of Credit Amount** |      |
|------------------------------------------------------------------|--------|-----------------------------|-----------|
| Third (3rd) anniversary of Second Phase Period Commencement Date |   | $                           | 3,500,000 |   |
| Sixth (6th) anniversary of Second Phase Period Commencement Date |   | $                           | 2,250,000 |   |

 

Notwithstandinganything herein to the contrary and regardless of whether a Reduction Date hasoccurred, in the event that Subtenant breaches or otherwise defaults in itsobligations under the Sublease (and such breach or default remains uncured atthe expiration of any applicable grace period), the Letter of Credit Amountshall not be subject to any reduction whatsoever and shall be Four MillionEight Hundred Thousand Dollars ($4,800,000) for the balance of the Term of thisSublease.

 

26.           BROKERAGE. Subtenant and Sublessor each represent and warrant to the other partythat it has dealt directly with the Designated Brokers in negotiating andmaking of this Sublease, and that no other brokers other than the DesignatedBrokers have a claim as a result of any relationship with Subtenant orSublessor on any consideration in connection with entering into this Sublease,and each party agrees to indemnify and hold harmless the other party from anyclaim or claims, as well as costs and expenses including attorneys’ feesincurred by such party in conjunction with any claim or claims, of any otherbroker or brokers claiming to have interested Subtenant in the Building(s) orSubleased Premises or claiming to have caused

 

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Sublessor orSubtenant, as the case may be, to enter into this Sublease or claiming to havehad dealings with Sublessor or Subtenant, as the case may be.  Pursuant to a separate agreement, Sublessorshall pay all commissions due to Williams Real Estate of New Jersey LLC, andSublessor shall have no liability to Binswanger and Binswanger shall looksolely to Williams Real Estate of New Jersey LLC for any commissions owed toBinswanger.

 

27.           WAIVER OF JURY TRIAL AND RIGHT TOCOUNTERCLAIM.  Each party hereby waives all right to trialby jury in any summary or other action, proceeding or counterclaim arising outof or in any way connected with this Sublease, the relationship of Sublessor andSubtenant, the Subleased Premises and the use and occupancy thereof, and anyclaim of injury or damages.  Subtenantalso hereby waives all right to assert or interpose a nonmandatory counterclaimin any summary proceeding or other action or proceeding to recover or obtainpossession of the Subleased Premises.

 

28.           NO WAIVER. The failure of either party to insist in any one or more cases upon thestrict performance or observance of any obligation of the other party hereunderor to exercise any right or option contained herein shall not be construed as awaiver or relinquishment for the future of any such obligation, right oroption.  Sublessor’s receipt andacceptance of Fixed Rent or Additional Rent, or Sublessor’s acceptance ofperformance of any other obligation by Subtenant, with knowledge of Subtenant’sbreach of any provision of this Sublease, shall not be deemed a waiver of suchbreach.  No waiver by either party ofany term, covenant or condition of this Sublease shall be deemed to have beenmade unless expressed in writing and signed by such party.

 

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29.           COMPLETE AGREEMENT. There are no representations, agreements, arrangements orunderstandings, oral or written, between the parties relating to the subjectmatter of this Sublease which are not fully expressed in this Sublease.  This Sublease cannot be changed orterminated orally or in any manner other than by a written agreement executedby both parties.

 

30.           SUCCESSORS AND ASSIGNS. The provisions of this Sublease, except as herein otherwise specificallyprovided, shall extend to, bind and inure to the benefit of the parties heretoand their respective personal representatives, heirs, successors and permittedassigns.

 

31.           INTERPRETATION. Irrespective of the place of execution or performance, this Subleaseshall be governed by and construed in accordance with the laws of the State ofNew Jersey.  If any provision of thisSublease or the application thereof to any person or circumstance shall, for anyreason and to any extent, be invalid or unenforceable, the remainder of thisSublease and the application of that provision to other persons orcircumstances shall not be affected but rather shall be enforced to the extentpermitted by law.  The table ofcontents, captions, headings and titles, if any, in this Sublease are solelyfor convenience of reference and shall not affect its interpretation.  This Sublease shall be construed withoutregard to any presumption or other rule requiring construction against theparty causing this Sublease to be drafted. If any words or phrases in this Sublease shall have been stricken out orotherwise eliminated, whether or not any other words or phrases have beenadded, this Sublease shall be construed as if the words or phrases so strickenout or otherwise eliminated were never included in this Sublease and noimplication or inference shall be drawn from the fact that said words orphrases were so stricken out or otherwise eliminated.  Each covenant, agreement, obligation or other provision of thisSublease shall be deemed and construed as a separate and independent

 

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covenant ofthe party bound by, undertaking or making same, not dependent on any otherprovision of this Sublease unless otherwise expressly provided.  All terms and words used in this Sublease,regardless of the number or gender in which they are used, shall be deemed toinclude any other number and any other gender as the context may require.  The word “person” as used in this Subleaseshall mean a natural person or persons, a partnership, a corporation or anyother form of business or legal association or entity.

 

32.           CONSENT OF LANDLORD UNDER MAIN LEASE. This Sublease shall have no effect until Overlandlord shall have givenits written consent hereto and to Subtenant’s plans for Alterations, all inaccordance with the terms of the Main Lease. Sublessor agrees to make commercially reasonable efforts to secure theconsent of Overlandlord, at no additional cost or expense to Sublessor,provided that Sublessor shall be responsible for the payment of Overlandlord’scosts, as provided in Paragraph 27 of the Main Lease.  Subtenant agrees that it shall be bound by the plans andspecifications approved by Overlandlord in connection with Overlandlord’sapproval of this Sublease.  IfOverlandlord does not give its consent to this Sublease and such plans for anyreason whatsoever within forty-five (45) days after the date hereof, (a)Sublessor shall not be obligated to take any further action to obtain suchconsent, (b) either party may elect to terminate this Sublease by writtennotice to the other party in which event this Sublease shall be deemed null andvoid and of no effect and neither party shall have any liability or obligationto the other party whatsoever, and (c) if Subtenant is then in possession ofall or any part of the Subleased Premises, Subtenant shall immediately quit andsurrender to Sublessor the Subleased Premises, shall remove all of its propertyand repair all damage caused by such removal and restore the Subleased Premisesto the condition in which they were prior to

 

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theinstallation of the items so removed. Subtenant’s obligations under clause (c) above shall survive thetermination of this Sublease pursuant to clause (b) above.

 

33.           NO THIRD PARTY BENEFICIARIES. No third parties may rely on the terms and conditions of this Sublease,except pursuant to Paragraph 30 above.

 

34.           SUBLESSOR’S LIABILITY LIMITED. In the event Sublessor shall fail to perform any covenant, term orcondition of this Sublease upon Sublessor’s part required to be performed, orif Subtenant shall make any claim arising out of Subtenant’s occupancy or useof the Subleased Premises based upon any action or omission of Sublessor,Subtenant covenants and agrees that Sublessor’s liability for any recovery ofmoney judgment from Sublessor from and after the date of this Sublease shallnot exceed the Letter of Credit Amount. In no event shall the stockholders, partners, directors, officers,agents or employees of Sublessor (either individually or severally) bepersonally liable for any such judgment. Furthermore, in no event shall Subtenant be entitled to an award ofincidental or consequential damages arising out of any breach bySublessor.  This paragraph shall inureto the benefit of Sublessor’s successors and assigns and their respectiveprincipals.

 

35.           UTILITIES. Subtenant recognizes that separate electrical, gas, water and sewermeters have been installed in each Building. During the First Phase Period, Subtenant shall pay to Sublessor, asAdditional Rent, within thirty (30) days following rendition of a billtherefore, an amount equal to Subtenant’s Proportionate Share of the OfficePark for such respective period with respect to the costs of electricity, gas,water and sewer service as measured by such meter, together with anyadministrative costs incurred by Sublessor by reason thereof without anymark-up for profit.  Sublessor shall notbe liable in any way to Subtenant for failure or defect in

 

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the supply orcharacter of any such service furnished to the Subleased Premises or to theBuilding by reason of any requirement, act or omission of the public utilityserving the Building with electricity or for any other reason whatsoever notattributable to Sublessor.  Subtenant’suse of electric energy, gas, water and sewer in the Subleased Premises shallnot at any time exceed the capacity of any of the electrical conductors andequipment in or otherwise serving the Subleased Premises and shall be inaccordance with the Main Lease.  Themethod and timing (but not more frequently than monthly) of billing suchservices shall be determined by Sublessor, using reasonable accountingprinciples, it being understood that it is not intended that Sublessor deriveany profit from the supplying of electric energy or other utility service.  Prior to the commencement of the Second PhasePeriod, Subtenant shall contract to obtain electric energy, water, sewer, gasand any other utilities directly from the utility provider serving the OfficePark, and Subtenant shall purchase and pay for such utilities directly to suchutility providers.

 

36.           MANAGEMENT COMPANY AND SUBCONTRACTORS.

 

(a)           Subject to the provisions of the MainLease, beginning on January 1, 2005, Subtenant may elect to initiate aselection process to replace the current management company for the Office Parkby submitting a written request to Sublessor providing detailed informationregarding the proposed replacement management company(ies) that will beevaluated.  Sublessor shall actreasonably in reviewing the proposed replacement management company(ies); provided,however, that Subtenant expressly acknowledges that Sublessor maywithhold its consent under this Paragraph to any proposed replacementmanagement company if such proposed replacement management company is not, inSublessor’s reasonable opinion, an established and well-recognized managementcompany.  Any contract entered into withrespect

 

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to themanagement of the Office Park shall be entered into by Sublessor and themanagement company and shall be reasonably acceptable to Sublessor.  Sublessor shall have the right to review andapprove (in its reasonable discretion) any and all documents, proposals,contracts and/or agreements related to the process of evaluating and replacinga management company.  Sublessor shallbe permitted to provide input with respect to any and allinfrastructure-related items.  Sublessoragrees that Subtenant shall have reasonable input with respect to those itemsset forth on Exhibit C.  Any andall reasonable costs incurred by Sublessor in connection with the evaluationand/or replacement of a management company shall be payable by Subtenant, atSubtenant’s sole cost and expense, as Additional Rent hereunder.  Notwithstanding anything herein to thecontrary, the Office Park shall at all times during the Term of this Subleasebe managed by a management company in accordance with the terms of thisSublease and in no event shall Subtenant be permitted to self-manage the OfficePark.

 

(b)           Subject to the provisions of the MainLease, beginning on January 1, 2005, Subtenant may elect to initiate aselection process to select and/or replace subcontractors to service the OfficePark by submitting a written request to Sublessor providing detailedinformation regarding the proposed subcontractor(s) that will beevaluated.  Sublessor shall actreasonably in reviewing the proposed subcontractor(s).  Any contract entered into with respect tothe provision of services for the Office Park shall be entered into bySublessor and the subcontractor and shall be reasonably acceptable toSublessor.  Sublessor shall have theright to review and approve (in its reasonable discretion) any and alldocuments, proposals, contracts and/or agreements related to the process of evaluatinga proposed subcontractor.  Sublessorshall be permitted to provide input with respect to any and allinfrastructure-related items.  Sublessoragrees that Subtenant shall have reasonable input with respect to those itemsset forth on Exhibit C.

 

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Any and allreasonable and actual costs incurred by Sublessor in connection with theevaluation of a subcontractor proposed by Subtenant shall be payable bySubtenant, at Subtenant’s sole cost and expense, as Additional Rent hereunder.

 

37.           FURNITURE AND FIXTURES. Audio/Visual equipment, telecommunications hardware and furniturecurrently located at the Office Park as of the date hereof shall not beconstrued as part of the premises subleased to Subtenant hereunder and shallremain under the exclusive use and control of Sublessor until such time as thesame are removed by Sublessor, which equipment shall, be removed by Sublessorat the time it vacates the various portions of the Buildings unless the partiesagree otherwise.  Sublessor shallpromptly repair damage to the Buildings caused by its removal of such property,ordinary wear and tear and damage by casualty excepted; provided, however,that Sublessor shall not be required to make such repairs if Subtenant’sAlteration plans show such areas are to be demolished, significantlyrestructured or reconfigured. Notwithstanding the foregoing, Sublessor shall leave for the use ofSubtenant all removable floor-to-ceiling partitions and all affixed cabinetsand counters.  Notwithstanding theforegoing, Sublessor shall not be required to remove anything in the walls orabove the ceiling.

 

38.           HOLDING OVER. If Subtenant retains possession of the Subleased Premises or any partthereof after the termination of this Sublease by expiration of the Term orotherwise, then, in addition to the rights and remedies provided for underParagraph 31 of the Main Lease, Subtenant shall also pay Sublessor all otherdamages, costs, liabilities and expenses sustained by Sublessor by reason ofSubtenant’s unlawful retention.  Withoutlimiting any rights and remedies of Sublessor resulting by reason of thewrongful holding over by Subtenant, or creating any right in Subtenant tocontinue in possession of the Subleased Premises, all Subtenant’s obligations

 

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with respectto the use, occupancy and maintenance of the Subleased Premises shall continueduring such period of unlawful retention.

 

39.           MISCELLANEOUS.

 

(a)           Sublessee represents and warrants that itis a corporation, validly existing and in good standing under the laws of theState of New Jersey, is qualified to transact business in the State of NewJersey, and that all corporate action necessary to authorize the execution ofthis Sublease has been taken and that each person signing this Sublease onbehalf of Subtenant has been authorized to execute this Sublease.

 

(b)           Sublessor represents and warrants that itis a corporation, validly existing and in good standing under the laws of theState of Delaware, is qualified to transact business in the State of NewJersey, and that all corporate action necessary to authorize the execution ofthis Sublease has been taken and that each person signing this Sublease onbehalf of Sublessor has been authorized to execute this Sublease.

 

(c)           Neither this Sublease nor a memorandumhereof shall be recorded or otherwise filed or made a matter of public record,and any attempt to record or file the same by Subtenant shall be deemed adefault by Subtenant hereunder.

 

(d)           Time is of the essence of each and everyprovision of this Sublease.

 

(e)           THE SUBMISSION BY SUBLESSOR TO SUBTENANTOF THIS SUBLEASE SHALL HAVE NO BINDING FORCE OR EFFECT, SHALL NOT CONSTITUTE ANOPTION FOR THE LEASING OF THE SUBLEASED PREMISES, NOR CONFER ANY RIGHTS UPONEITHER PARTY UNTIL THE EXECUTION THEREOF BY

 

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SUBLESSOR,SUBTENANT AND OVERLANDLORD AND THE DELIVERY OF AN EXECUTED ORIGINAL COPYTHEREOF TO SUBLESSOR, SUBTENANT AND OVERLANDLORD.

 

(f)            This Sublease shall in no way be subjectto or conditioned upon Subtenant’s receipt of any economic incentives orgrants, other than the Tenant Allowance.

 

(g)           This Sublease may be executed by theparties hereto in any number of separate counterparts (including facsimilesignature pages), all of which, when delivered, shall together constitute oneand the same Sublease.

 

(h)           Notwithstanding anything to the contrarycontained herein, in no event shall Sublessor be required or obligated to bringany cause of action against Overlandlord at law or in equity, including, butnot limited to, any cause of action for money damages.

 

 

[Remainder of page intentionally left blank]

 

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INWITNESS WHEREOF, Sublessor and Subtenant have hereunto executed this Subleaseas of the day and year first above written.

 

 
|   | SUBLESSOR:                                               |
|--------|----------------------------------------------------------|
|   |                                                     |   |
|   | PHARMACIA  & UPJOHN COMPANY, a Delaware  corporation |
|   |                                                     |   |
|   |                                                     |   |
|   | By:                                                      |    ALAN  WEINER |   |
|   |                                                     | Name: | Alan Weiner |
|   |                                                     | Title: | Vice  President |
|   |                                                     |   |
|   |                                                     |   |
|   | SUBTENANT:                                               |   |
|   |                                                     |   |
|   | DENDRITE  INTERNATIONAL, a New Jersey  corporation       |
|   |                                                     |   |
|   |                                                     |   |
|   | By:                                                      |    JOHN  E. BAILYE |   |
|   |                                                     | Name: | John E.  Bailye |
|   |                                                     | Title: | Chairman  and Chief Executive Officer |
|        |                                                          |  |  |  |  |  |

 

 

ThisSublease and the use permitted hereunder are hereby consented to as of this        day of                          ,2003, by the undersigned, the landlord under the Main Lease described herein.

 

 
|   | JAYGRACE  CO., L.L.C. |
|--------|-----------------------|
|   |                  |   |   |
|   | By:                   |   |   |
|   |                  | Name: |   |
|   |                  | Title: |   |
|        |                       |  |  |  |

 

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Commencing on October 1, 2015 and continuingthrough the Expiration Date, PCM Leasing Liability Company (“PCM”)hereby agrees to be bound by all benefits, obligations and liabilities ofSublessor under this Sublease and all references in this Sublease to“Sublessor” shall be deemed to mean PCM from and after October 1, 2015through the Expiration Date.

 

 
|   | PCM LEASING  LIMITED LIABILITY COMPANY, a  Delaware limited liability company |
|--------|-------------------------------------------------------------------------------|
|   |                                                                          |
|   | By:                                                                           | Pharmacia  & Upjohn Company, a Delaware  corporation, its sole member |
|   |                                                                          |   |
|   |                                                                          |   |
|   | By:                                                                           |   ALAN  WEINER |   |
|   |                                                                          | Name: | Alan Weiner |
|   |                                                                          | Title: |  Vice  President |
|        |                                                                               |  |  |  |  |

 

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PharmaciaCorporation (“Pharmacia”) hereby accepts all benefits, obligations andliabilities of Sublessor under this Sublease; provided, however,that in the event Sublessor shall fail to perform any covenant, term orcondition of this Sublease upon Sublessor’s part required to be performed, orif Subtenant shall make any claim arising out of Subtenant’s occupancy or useof the Subleased Premises based upon any action or omission of Sublessor,Subtenant covenants and agrees that the aggregate liability of Pharmacia andSublessor for any recovery of money judgment from Pharmacia and/or Sublessorfrom and after the date of this Sublease shall not exceed the Letter of CreditAmount.  In no event shall thestockholders, partners, directors, officers, agents or employees of Pharmacia(either individually or severally) and of Sublessor (either individually orseverally) be personally liable for any such judgment.  Furthermore, in no event shall Subtenant beentitled to an award of incidental or consequential damages arising out of anybreach by Sublessor.  This paragraphshall inure to the benefit of Pharmacia’s and Sublessor’s successors andassigns and its and their respective principals.

 

 
|   | PHARMACIA  CORPORATION, a Delaware  corporation |
|--------|-------------------------------------------------|
|   |                                            |
|   | By:                                             |   B.  BAYALA |   |
|   |                                            | Name: | Brian  Bayala |
|   |                                            | Title: |  Vice  President |
|        |                                                 |  |  |  |

 

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**OVERLANDLORD CONSENT TO SUBLEASE (this “Consent”)**

(attached toand made a part of Sublease dated September 17, 2003 between

Pharmacia& Upjohn Company and Dendrite International, relating to premises

commonlyknown as 1405 Route 206 and 1425 Route 206, Bedminster, New Jersey)

 

1.             Overlandlord acknowledges its receipt and review of  a copy of the Sublease.

 

2.             Overlandlord consents to and approves the Sublease andrecognizes the Sublease as valid and effective.  Overlandlord also acknowledges that neither the execution ordelivery of the Sublease shall cause a default or event of default under theMain Lease.  This Consent is given withthe understandings that, except as expressly set forth in this Consent, (i)Overlandlord is not bound or estopped by any provision of the Sublease, (ii)nothing in this Consent shall relieve Pharmacia or PCM from its obligationsunder the Main Lease, and (iii) nothing in this Consent shall be deemed toamend any of the provisions of the Main Lease or waive any of Overlandlord’srights and remedies under the Main Lease.

 

3.             Subject to paragraph 4 of this Consent, Overlandlordconsents to and approves the alterations to the Subleased Premises proposed bySubtenant as shown by or described in a space plan (prepared by CUH2A,Architects, Engineers, Planners, P.C., dated August 19, 2003, 9 sheets), afour page memorandum (dated September 11, 2003) supplementing the spaceplan, and preliminary specifications (dated July 21, 2003, prepared byCUH2A, Architects, Engineers, Planners, P.C., project no. 0673-002.04, 73pages) (collectively, the “Special Alterations”).  Overlandlord’s consent to and approval of the Special Alterations(i) shall not relieve any party from obtaining Overlandlord’s consent to anyfurther alterations if and to the extent such consent is required by the termsof the Main Lease, (ii) shall not constitute or be construed as arepresentation or agreement by Overlandlord that the Special Alterations are incompliance with Laws (as defined in the Main Lease), and (iii) shall notrelieve any party of its obligation to comply with the specific requirements ofthe Main Lease governing the actual performance of Alterations (as defined inthe Main Lease).  In addition to and notin limitation of the foregoing, and notwithstanding anything stated elsewherein this Consent to the contrary, (y) any generator installed outside of eitherBuilding in connection with the Special Alterations must be set back a minimumof 150 feet from the Building, must be enclosed for sound attenuation, and mustotherwise have visual screening in accordance with local codes (it being understoodfor purposes of this clause (y) that a generator installed in the basementlevel of a parking garage is not considered to be installed outside of eitherBuilding), and (z) the result of the Special Alterations will not be to either(1) reduce the capacity of the HVAC or other Building system, or (2) materiallyimpair the normal functioning of the HVAC or other Building system.

 

4.             Except for movable furniture, artwork,office machines and supplies, communications equipment, and generators (includingancillary equipment thereto such as switching gear), all of the SpecialAlterations shall become the property of Landlord upon installation**.  For purposes of clarification, it isacknowledged that, since the generators and ancillary equipment are not to become Landlord’s property, the sameshall be deemed to be part of “Tenant’s Property” under the Main Lease**.

 

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5.             This Consent does not include consent to any amendment tothe Sublease or to any assignment of the Sublease by Subtenant or anyunderletting or sub-subleasing of all or any portion of the Subleased Premisesby Subtenant, if and to the extent such consent from Overlandlord is requiredby the terms of the Main Lease.

 

**6.****            ****Thesignatures on this Consent may be delivered by facsimile in lieu of an originalsignature.**

 
| JAYGRACE CO., L.L.C.   |
|------------------------|
|                   |   |
|                   |   |
| By:                    |   | SIMON HALEGOUA |   |
|                   |   | Simon Halegoua |
| Its:                   |   | Member and Authorized Signatory |
|                   |   |
| October 31,  2003 |

 

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